BFOQ and Bookstores
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Wed Dec 20 18:59:12 PST 2000
James Maule wrote:
> There's an irony here. If we go back to when this country was being forged out of the experiences of colonists in 13 separate and very different colonies, we find that the concerns leading to the religion clauses in the First Amendment arose not from the sort of homogenization that characterizes much of present day analysis but tolerance ("you leave us alone and we'll leave you alone" and "don't tax us for your minister's salary and we won't tax you for our minister's salary").
One needs to consider the range of views or positions held by the Founders. There were the Pietists who wanted to keep religion free from the taint of government, there were the Rationalists who wanted to keep government free from the taint of religion, there were the civic republicans who thought that religion was a good thing for society, but they were not inclined to push the point from a theological perspective, and there were the Puritans, who held to a Calvinist orthodoxy that taught that religion and the state needed to have a close relationship. Add to this the fact that no one religion could command a national majority at the Founding. Furthermore, consider the fact that the imperative of white settlement militated against an establishment in the traditional sense because prospective -- and desirable -- white immigrants held to a variety of Protestant religious traditions.
But at least as important is the question of the philosophical tension between the "toleration" view held by Patrick Henry and others, that traces its origins to John Locke and finds expression, thanks Michael McConnell for pointing it out, in Edmund Burke and also finds expression, in a particularly American pan-Protestant form, in Joseph Story, and the "rights" view held most notably by James Madison.
But, of the utmost importance, we have to take into account the attack, at the time of the Founding, as well as before and after, on the religion of Native Americans and African Americans. The willingness to destroy those religion certainly ought to give one pause in the face of claims of either "toleration" or "rights." A discussion about the primarily intra-Protestant squabbles of white people is, at best, incomplete, therefore.
> Even the tolerant Quaker is intolerant of intolerance, and that is a bigotry, is it not? An acceptable one in today's "post modern" secular culture, but no less a bigotry).
The intolerance of intolerance goes back a good many years, at least to J.J. Rousseau. Furthermore, there is the difficult question of whether a commitment to tolerance justifies, on moral grounds, acceptance of intolerance, expecially when there is good reason to believe that if the intolerance gains the upper ground all tolerance is lost, or that tolerance is seriously compromised. (Mozert comes to mind.)
> Yes. Generally, however, businesses seek profit and thus will sell (almost) anything to (almost) anybody. That, too, is the history.
I am glad that the qualifying words "generally" and "almost" appear here. My mother, as a young woman in Chicago Illinois in the 1930s and 1940s could not spend her money in some of the major department stores in that town, including the most profitable and successful ones. Furthermore, if we move up the present time, we have the continuing and persistent problem of real estate developers who refuse to sell to racial minorities, and we have the continuing and persistent problem of mortgage lenders who "red line" minority mortgage applicants. I guess it depends on how you look at the problem. I see the problem, obviously, somewhat differently, guided, no doubt, by my personal experience and that of my family. But surely my experience is not atypical. If it were, then we would have no need for civil rights, fair housing and other similar laws, and we would not read, on a regular basis, of some business being charged with refusing to sell to everybody. (Lunch at Denny's
> In contrast, the very experience afflicted people on the basis of race (and still does, in terms of things such as red-lining).
Point noted, but see above.
> Because religion has faded so much from the national culture at an everyday level,
Has it, really? Church attendance is much higher now, as a percentage of the total population, than it was at the Founding.
> there is much less desire on the part of people to live in neighborhoods where they are with their co-believers, and thus the pressures arising from the intermingling of denominations (and I would include agnostics, atheists, etc in this term for ease of reference) generates the sort of hiring, house purchasing, and similar pressures on the law's attempt to balance the one person's right to free exercise and expression with those of others. Unfortunately, what is emerging is a set of dictatorial precepts that themselves become a "federal religion" that threatens the sanctity of the establishment clause.
I think that we need to pay attention to the complex relation between race and religion, one that has persisted throughout our national history. Cf. Will Herberg's Protestant-Catholic-Jew. See, also, African-American writers like Joseph Washington, Jr., who tried to reconcile their Protestantism with that of white Americans. (One could argue whether or not Washington succeeded. But that topic warrants a book-length discussion.)
> Sociologists tell us that the tendency to "us and them" and to fragmentation into tribes is the predominant social force. History proves that... great nations and empires arise when a person (or family) with great charisma "unites" various tribes, but usually the unity breaks down on the person's death or the family's demise. E.g., Rome, Alexander's Greece, the British Empire, "Great Britain" itself. Yugoslavia, the Ottoman Empire, the Soviet Union, etc etc. The same decentralization pressures bear on the American Empire, and the more of the countervailing unifying, conforming, centralized pressure comes to bear, the farther flung are the fragments when the momentum tears apart the temporary unity. It is said that "blood is thicker than water" and if we take blood to mean not only biological connection but cultural identity, and consider water to be the weaker ties of political and expedient alliance, then it is certainly true, blood is thicker than water.
I guess that I am confused. Who is the "uniter" and when did he/she/they/it die? I also do not understand what the phrase "decentralization pressures" means. What American tribes, white or otherwise, are now breaking apart (assuming of course, that at some point in the past these tribes were "united")?
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